Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

There is a proposed new law making its way through the New York State legislature that would regulate how museums deaccession items in their collections. While ostensibly about museums, the law could have a major impact on how libraries function. All libraries and historical societies in NY should write to the legislation's sponsors and ask that passage be delayed until definitions are clarified.

The bills are A06959 (introduced by Richard L. Brodsky) and its identical counterpart S04584 (introduced by José M. Serrano). They would govern how museums acquire and dispose of objects. You can learn more from a hearing on the topic found here.

The proposal has generated some discussion and concern within the museum community (see, for example, the letter from the Art Law Committee of the New York City Bar or the posts on the bill in the Art Law blog). My concern is with its potential impact on libraries and archives. The problem is that while the bill discusses the issue surrounding collecting in museums, it defines museums so broadly that most libraries and archives would fall under its sway. Here is the definition:

"MUSEUM"
means any institution having collecting as a stated purpose in its charter,
certificate of incorporation, or other organizing documents, or owning or
holding collections, or intending to own or hold collections that is a
governmental entity, education corporation, not-for-profit corporation, or
charitable trust.

Since almost every library in the state owns or holds collections, for the purposes of the law they would be museums. The law would sharply limit their ability to dispose of any material (other than returning it to the donor). Everything the library or archives gets would have to be accessioned before it could be discarded. And instead of throwing unwanted items into the trash or putting them in the local library book sale, a library would first have to offer the material to other "museums" in New York state and then the rest of the country. Proceeds from any sale could only be used to support further acquisitions.

Please write to Assemblyman Brodsky and Senator Serrano and ask them delay any further action on this legislation until the definitions are modified to make it clear that libraries, archives, historical societies, and other groups in the state that collect are not subject to these onerous new terms.

There has been a lot of talk by some of the critics of the Google Books Settlement (GBS) about how it gives Google a monopoly on orphan works. But most of the commentators who have talked about orphan works and the Google settlement are sloppy in their language. In this post, I want to clarify the language and then make a stab at some numbers.

There are two sets of books governed by the settlement. First, there are the in-copyright but out of print books whose rights holders sign up with Google. We can call these "active rights holders." Second, there are the in-copyright but out-of-print books whose authors do not register with Google or the Books Rights Registry: the "inactive rights holders."

Some like to call this second group "orphan works," but that is wrong. This latter group actually consists of two separate groups. First, there are rights holders who could be easily located but who have chosen not to sign up with the Registry. Foreign authors whose works are normally protected by their national reproduction rights organization come readily to mind. I suspect that many could not conceive that their works could be used without their explicit permission and so see no need to register. Others may not learn of the settlement in spite of Google's advertising campaign. Because these authors could be easily identified and located, however, their works are not orphan works. The other portion of the "inactive rights holders" subset are the true orphan works: works whose copyright owners either cannot be located either because they cannot be identified or because their whereabouts are unknown.

The scope of the orphan works problem

Trying to come up with numbers is a very challenging task, but here is a quick attempt to get some ballpark figures. First, we need to look at the potential scope of Google's database. The Lavoie article on the Google 5 said that WorldCat contained 32 million print book records in 2005. I think that number is too high because we know that there is a tremendous amount of duplication in WorldCat, but let's use it as the outside potential limits of the Google database. Bowker's Global Books in Print reports 18.5 million book items in print, which leaves 13.5 million titles that are out-of-print. (Since that is a current figure and would include books published between 2005 and 2009, it is probably too high - but I also suspect that there are many in-print foreign titles that are not included. Let's use it.)

Lavoie reported that there were 5.4 million titles that were out of copyright (pre-1923), so we are left with roughly 8 million titles that are potentially in copyright but out of print. (Some of these would be American works that have not had their copyright renewed and hence are in the public domain, but I think the number could only be 150,000 1.7 million at most, and so I am going to ignore that).

[UPDATE: So I got a good question about the number of works that might have entered the public domain that pointed out that my original number is wrong. Here is my thinking: of the 8 million books, half are in English (following WorldCat numbers) and hence are likely to be American works. (I won't worry about books published only in England.) Of those 4 million, 63% according to Lavoie are after 1963, and still protected by copyright. That leaves 1.9 million works published between 1923 and 1964. A 1961 copyright study suggested that maybe 9% of these works were renewed and still protected by copyright, though recent work by Michigan indicates that 41% of the works are still protected by copyright. If we assume 90% are public domain, then 1.7 million works are public domain. If 59% are PD, then 1.1 million are PD. Let's call it 1.5 million - and the number of in-copyright but out of print works should drop from 8 million to 6.5 million.]

So we are talking about 8 [6.5] million works published since 1923 that are in copyright but out of print. Of those, how many are going to have inactive rights holders? What percentage of authors are going to register with Google, and what percentage will ignore the call? Or if we look another way - what percentage of these works are true orphans?

Denise Troll Covey's numbers might provide some guidance. In CMU's random trial, she was unable to locate 21% of publishers. (There random sample was not limited to out-of-print books, so the percentage might actually be too low.) If we assume that number would hold on the 8 [6.5] million, that would mean that we have about 1.7 [1.4] million true orphan works in the total database of 13.5 [12] million. (That number might actually be smaller since some rights holders other than publishers might come forward via the settlement.) The remaining 11.8 [10.6 ] million books would either have rights holders who registered with Google or who choose not to register.

Even with orphan works legislation, these works would not be eligible for inclusion in a digitized books database since they are not true orphans. The Google Books settlement is the only way to get cost-effective access to them.

What we need in the settlement is a compulsory license that would allow anyone to license the use of a work maintained by a non-active rights holders, and not just orphan works.

A few days ago I posted on the impact that the establishment of copyright relations with the United States after 1998 could have on the term of restored copyright for those works. My posting was prompted by an example in Stephen Fishman's excellent new treatise, "Copyright and the Public Domain." After reading an example, I concluded that a work published abroad before 1923 could still be protected by copyright because they would get a 95 year copyright term.

Fortunately in the world of social networking there are lots of people out there who are smarter than I am. In the comments on the post, Lupo questioned my reasoning, and of course he is right. Works published before 1923 got at most a 75 year term of restored copyright regardless of when they established copyright relations with the US. They are all in the public domain. Works published after 1922 in the countries listed in my previous post would receive a 95 year term of copyright. So for example, a 1923 work published in Nigeria, which established copyright relations with the US in 1999, would be protected by copyright through 2018 [corrected from 2038]. My deep thanks go to Lupo for challenging me.

I still have to update the copyright chart to properly account for the difference between a 75 year term in 1996 and a 95 year term in 1998 - but that is a different issue than the one I raised before.

(39) Employees of public libraries, provided, however, that reporting duties for these employees shall be limited to reporting the use of computers in public libraries, discovered in the course of their duties, to access, on the Internet or from other sources, any material that would constitute depictions of sexual exploitation as described in subdivision (c) of Section 11165.1.